Appel v. Wolf

• Court: District Court, S.D. California
• Decided: July 31, 2023
• Docket: 3:18-cv-00814
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HOWARD APPEL, Case No.: 18-CV-814 TWR (BGS)

12 Plaintiff, ORDER (1) DENYING 13 v. DEFENDANT’S MOTION TO CONTINUE PRETRIAL 14 ROBERT S. WOLF, CONFERENCE AND TRIAL, AND 15 Defendant. (2) FOR THE PARTIES TO FILE A JOINT STATUS REPORT ON OR 16 BEFORE AUGUST 4, 2023 17 (ECF Nos. 119, 120, 121) 18

19 Presently before the Court is Defendant Robert S. Wolf’s Motion to Continue 20 Pretrial Conference and Trial. (ECF No. 119, “Mot.”) The Court has also received and 21 reviewed Plaintiff Howard Appel’s Opposition to the Motion, (ECF No. 120), and 22 Defendant’s Reply and Update Regarding Request for Continuance of Trial Date, (ECF 23 No. 121). For the following reasons, the Court DENIES Defendant’s Motion to Continue 24 and ORDERS the Parties to file a Joint Status Report on or before Friday, August 4, 2023. 25 The Parties previously filed a Joint Motion to continue the Final Pretrial Conference, 26 (see ECF No. 114), which the Court granted on July 5, 2023, (see ECF No. 115). Defendant 27 then filed another Motion seeking a continuance of the Final Pretrial Conference, as well 28 as the trial and other related dates, (ECF No. 116), which the Court granted in part and 1 denied in part on July 21, 2023, (ECF No. 118). The Court granted Defendant’s Motion 2 insofar as it sought a continuance of the trial date but denied the Motion insofar as it sought 3 a continuance of the Final Pretrial Conference. (See generally id.) Accordingly, the Court 4 reset the trial for September 5, 2023, at 9:00 a.m., in Courtroom 3A but did not disturb the 5 Pretrial Conference set for August 17, 2023, at 3:00 p.m., in Courtroom 3A. (See id.) In 6 that same Order, the Court set forth a detailed procedural history of the continuances and 7 extensions that have been granted in the five years this case has been pending. (See id. at 8 1–2.) 9 Through the instant Motion, Defendant now seeks another continuance of the trial 10 date, asking the Court to reset the trial for September 11, 2023, as this “is a date that both 11 Mr. Wolf and [his counsel] Mr. Pettit are available.” (See Mot. at 3–4.) Defendant asserts 12 that he has a conflict with the September 5, 2023 trial date because he has a planned 13 vacation from August 26, 2023 to September 9, 2023. (See id. at 2–3.)1 Although 14 Defendant had the opportunity to inform the Court of this purported conflict in his previous 15 Motion to Continue, his counsel evidently “did not feel it was necessary” on account of the 16 fact that “counsel’s trial engagements covered the same period of time.” (See id. at 2.) 17 Yet, those trial engagements covered only August 25, 2023 to September 1, 2023. 18 (See ECF No. 116 at 2.) Moreover, in the prior Motion to Continue, Mr. Pettit informed 19 the Court of his client’s other vacation dates that presented scheduling issues. (See id. 20 (“Defendant is unavailable November 10–25 for a previously planned trip out of the 21 country.”).) Although Mr. Wolf appears to have purchased the hotel for his vacation before 22 the undersigned set this matter for trial, (see ECF No. 119-2 at 1 (“reservation . . . booked 23 on July 02nd 2023”), “clients must be held accountable for the acts and omissions of their 24 attorneys,” Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 396 (1993). 25

26 1 Defendant’s Motion also asserted that his counsel may have a conflict with the September 5, 2023 27 trial date due to the Citizens of Humanity v. Clark, et al. trial, (see Mot. at 3), but in the Reply and Update Defendant informed the Court that the Citizens of Humanity trial has been continued to March 2024 and 28 1 More importantly, the September 11, 2023 trial date proposed by Defendant clearly 2 conflicts with Plaintiff and Plaintiff’s counsel’s pre-existing obligations. (See generally 3 ECF No. 120.) Counsel for Plaintiff is set for trial on September 8, 2023, and 4 September 11, 2023, (see id. at 2–3), and Plaintiff himself has represented that he has an 5 undisclosed conflict with the September 11, 2023 trial date, (see id. at 3). The Court 6 acknowledges that Plaintiff and his counsel have both taken “steps to clear their calendars 7 for the September 5, 2023 trial date [o]rdered by the Court, based on Defendant’s 8 previously filed motion to continue,” (see id. at 2), and that moving the trial to 9 September 11, 2023, would cause a serious conflict. 10 As for the Final Pretrial Conference on August 17, 2023, at 3:00 p.m., defense 11 counsel represents that he is “trial counsel” in an action set for trial from August 16, 2023, 12 to August 25, 2023, which will render him unavailable for the Final Pretrial Conference. 13 (See generally ECF No. 119-1.) Yet, as the Court noted in its previous Order, (ECF No. 14 118 at 3), and as defense counsel himself acknowledges, (see ECF No. 119-1 ¶ 2), the trial 15 is for a case in which Mr. Pettit has not in fact appeared. Furthermore, defense counsel has 16 offered to “advise the trial court in Los Angeles of [his] conflict and ask that [they] finish 17 early on August 17, 2023[,] so that [he] can appear remotely at 3:00 p.m.”2 (See id. ¶ 9.) 18 Thus, it does not appear that defense counsel’s conflict with the Final Pretrial Conference 19 is immovable. Moreover, defense counsel’s request that “this Court set [the] Final Pretrial 20 Conference for some date prior to August 16, 2023,” (see ECF No. 119-1 ¶ 10), is not only 21 incompatible with the Court’s calendar, but would require the Court to expedite the 22 deadlines for, among other things, proposed jury instructions, verdict forms, voir dire 23 questions, and stipulations. Expediting those deadlines at the eleventh hour would almost 24 certainly cause undue prejudice to Plaintiff. The Court therefore DENIES Defendant’s 25 26 27 2 Pursuant to Section III.B.8 of the undersigned’s Standing Order for Civil Cases, defense counsel must file an ex parte motion at least three court days before the Final Pretrial Conference if he wishes to 28 1 ||Motion to reschedule the Final Pretrial Conference and to continue the trial to 2 September 11, 2023. 3 Although the Court cannot accommodate the trial and Pretrial Conference dates 4 ||sought by Defendant, it has identified—based on the Parties’ briefing—a set of potentially 5 ||mutually agreeable dates for the Parties’ consideration. The Court is available on 6 || Thursday, September 14, 2023, at 3:00 p.m., for a Final Pretrial Conference and on 7 Monday, September 18, 2023, at 9:00 a.m., for trial. The Court therefore ORDERS the 8 || Parties to meet and confer and to file a Joint Status Report, not to exceed three (3) pages, 9 or before Friday, August 4, 2023, informing the Court whether the Parties mutually 10 |/consent to the proposed dates. If both Parties consent to the aforementioned dates, the 11 || Court will reset the Final Pretrial Conference and trial dates. The Court will not, however, 12 ||amend any filing deadlines preceding the Final Pretrial Conference.’ If either Party does 13 consent to the proposed dates, the pre-existing Pretrial Conference date of August 17, 14 2023, at 3:00 p.m., and trial date of September 5, 2023, at 9:00 a.m., will remain 15 || undisturbed, as will all corresponding deadlines. 16 IT IS SO ORDERED. 17 || Dated: July 31, 2023 —_—— 18 | od (2 ® re 19 Honorable Todd W. Robinson United States District Judge 21 22 23 24 25 26 3 The filing deadlines set forth in the Court’s July 5 Order, (see ECF No. 115 at 3:1-15), and 27 || affirmed in the Court’s July 21 Order, (see ECF No. 118 at 4:21-5:8), will control. If the trial date is 28 reset, the Court will, however, reset the Parties’ deadline to “1. Provide exhibits to the Court, and 2. Exchange demonstrative exhibits.” (See ECF No. 118 at 5:11-13.)